On June 20, 2006, the Wisconsin State Employees Union, AFSCME, Council 24,
AFL-CIO, filed
a complaint with the Wisconsin Employment Relations Commission alleging that the State of
Wisconsin had
committed unfair labor practices by failing and refusing to comply with certain grievance
arbitration awards,
in violation of Secs. 111.84 (1)(a) and (e), Stats. On July 17, 2006, the State filed a Notice
of Motion
and Motion for the Commission to decline jurisdiction. Following a briefing schedule which
closed on
September 21, 2006, the Examiner on October 16, 2006 issued an Order Denying
Motion to Decline
Jurisdiction. Hearing in the matter was held on February 9, 2007, with a stenographic
transcript being
made available to the parties by February 21. The parties thereafter exchanged written briefs
(the
complainant submitting on April 6 and May 30, the respondent on April 26). The examiner
hereby issues
the following

No. 31865-C

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Dec. No. 31865-C

FINDINGS OF FACT

1. The Wisconsin State Employees Union, AFSCME, Council 24, AFL-CIO, is a
labor
organization as defined by 111.81(12), Stats. At all times material hereto, it was and
continues to be the
exclusive bargaining agent for state employees whose positions were previously allocated by
action of the
Commission to statutorily created bargaining units pursuant to Sec. 111.825, Stats.

2. The State of Wisconsin is the "employer" of WSEU members as that phrase is
used and
defined throughout the State Employment Labor Relations Act, which, at
Sec. 111.815(1), Stats., provides
that "the state shall be considered as a single employer and employment relations polices and
procedures
throughout the state shall be as consistent as practicable."

3. The parties at all times material have had a Master collective bargaining
agreement, which
includes a provision, at Article 4, establishing a grievance procedure culminating in an
arbitration that is
"final and binding on both parties to this Agreement." The parties to the agreement are
defined as "the State
of Wisconsin and its Agencies (hereinafter referred to as the Employer) and AFSCME,
Council 24,
Wisconsin State Employees Union, AFL-CIO, and its appropriate affiliated locals (hereinafter
referred to
as the Union) ."

4. Since at least 1989, the parties' master agreements have included provisions
relating to sick
leave and sick leave abusers, amended in the 2000-2001 agreement as follows:

C. where performance of assigned duties would jeopardize
the employee's
health or recovery.

In the event the Employer has reason to believe that an employee is abusing the sick
leave
privilege or may not be physically fit to return to work, the Employer may require a medical
certificate or other appropriate verification for absences covered by this Article. When an
employee has been identified as a sick leave abuser by the Employer and required to
obtain a medical doctor's statement for sick leave use, the notice of such requirements will
be given to the employee and the local Union in writing. If the medical certificate verifies
that the employee was not abusing sick leave or is physically fit to report to work, the
Employer shall pay the cost of the medical certificate. When an employee must obtain such
medical certificate during his/her regularly schedules hours of employment, he/she shall be
allowed time off without loss of pay or sick leave

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Dec. No. 31865-C

credits to obtain the certificate. Employees will be permitted to use holidays,
compensatory
time off and/or annual leave in lieu of sick leave when they so request.

To protect employee privacy, the parties shall make a good faith effort to
maintain the
confidentiality of personal medical information which is received by or disclosed to the
Employer in the course of administering this section.

Sick leave, unanticipated use of sick leave, and innovative positive methods or
programs
to reduce the use of sick leave are appropriate topics of discussion at local
labor/management meetings.(added in 2000-2001).

5. On December 4, 2004, Arbitrator Herman Torosian issued an award in State
of
Wisconsin (Department of Corrections), OSER Case No. 19121 ("the Torosian Award," or
the
"Local 281 award") concerning a grievance alleging the employer had violated Article
13/5/2A of the
collective bargaining agreement. The Torosian Award held that the employer had violated
Article 13/5/2A
of the agreement by securing medical information from the grievant's medical providers
without the
grievant's consent, and ordered the state to "cease and desist from doing so in cases where
employees
have validated their absences under Section 13/5/23A."

6. On May 4, 2005, Arbitrator George Fleischli issued an award ("the Fleischli
Award," or
the "Local 48 award") in Department of Health and Family Services (OSER Case No.
019255),
also interpreting Section 13/5/2A. Arbitrator Fleischli held that the employer had just cause
to impose a
three-day and a five-day suspension, but did not have just cause to terminate the grievant.

7. Among its varied general government functions, the State of Wisconsin
maintains the
Department of Health and Family Services (DHFS). Within the DHFS there is a Division of
Care and
Treatment Facilities, which operates seven facilities at locations around the state. The
facilities have
separate policies for the information which employees who are designated as Sick Leave
Abusers (SLA's)
have to provide when taking sick leave. At the Winnebago Mental Health Institute and
Mendota Mental
Health Institute, SLA's merely have to submit a slip from their health care provider stating
the employee
had "a medical reason" for missing work. At the Central Wisconsin Center, Southern
Wisconsin Center,
Northern Wisconsin Center and Wisconsin Resource Center, SLA's have for several years
been required
to provide a certificate from their health care provider stating "medical condition for
absence," along with
a "statement that the illness did preclude work for each day of absence and the reasons why."
At these
facilities, having the health care provider state "medical illness" has not been considered
sufficient.

8. The State of Wisconsin also maintains a Department of Veterans Affairs,
which operates
the Wisconsin Veterans Home at King, where the sick leave policy in effect since at

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Dec. No. 31865-C

least 1999 requires employees "on the letter" as SLA's to submit a medical verification
that includes "a
specific description of the illness or injury being treated."

9. On or about August 2, 2002, the Human Resources Director of the Veterans
Home at
King issued a letter to DVA employee Nikki Powell, requiring her to provide "appropriate
medical
verification for all future absences involving an illness." Among other elements, the medical
verification was
required to "articulate the nature of the health care problem and why the health care problem
prevented
you from working." Unless the requirement was subsequently waived, Powell was required
to provide
the verification or face disciplinary action for insubordination as well as loss of pay. By letter
dated
September 14, 2004, Powell was issued a written warning for submitting a medical slip
stating "medical
illness." Prior to the event for which she was disciplined, Powell had submitted full medical
verifications
on at least seven occasions. Powell, who in July 2004 had signed a release authorizing her
medical
provider to "release information to by employer," filed a grievance over the written warning,
which was
processed to the point of arbitration. By letter dated October 28, 2005, the WSEU's counsel
requested
that Powell's grievance be sustained on the basis of res judicata and
collateral estoppel, (namely the
Torosian and Fleischli Awards)further requesting that "all other pending
grievances presenting the same
issue be resolved in accordance with these arbitration decisions. Moreover, the form letter
sent to Sick
Leave Abusers must be altered to conform to these decisions." The State, through OSER,
refused to grant
either relief the Union sought.

10. By letter dated January 26, 2006, Rick Brockwell, an employee of the DHFS's
CWC who
had earlier been designated as an SLA, was given a reprimand and a two-day suspension for
presenting
a medical slip stating "Due to medical illness, my patient Rick D. Brockwell is unable to
work on the
following dates." During a meeting to discuss the resulting grievance, a WSEU steward
demanded that the
discipline be rescinded in light of the Torosian and Fleischli awards, which the CWC refused
to do, leaving
the grievances pending.

11. On February 21, 2006, Charles Cregger, also "on the letter" as a CWC sick
leave abuser,
received a verbal reprimand for presenting a medical slip stating he was "seen in my office
with an illness
on January 24, 2006." Citing the Torosian Award, Cregger grieved the verbal reprimand,
which grievance
was pending at time of hearing in the instant complaint.

12. On March 9. 2006, CWC employee Rachel Tatge, another SLA, was given a
verbal
reprimand and leave without pay after she submitted a medical slip stating, "off work due to
an illness and
appointment to evaluate and treat on March 5, 6 and 9th, 2006." During a
meeting to discuss the resulting
grievance, a WSEU steward demanded that the discipline be rescinded in light of the
Torosian and Fleischli
awards, which the CWC refused to do, leaving the grievances pending.

13. Neither the Torosian Award nor the Fleischli Award resolved the precise issue
of whether
13/5/2A of the Master collective bargaining agreement prohibits the State of Wisconsin from
requiring
employees on the Sick Leave Abuser letter to provide a statement as to the medical diagnosis
and/or
symptoms which prompted their sick leave.

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Dec. No. 31865-C

14. There are significant differences in material facts between the Torosian Award
and Fleischli
Award and the grievances referenced in Findings of Fact 9-12.

On the basis of the above and foregoing Findings of Fact, the Examiner issues the
following

CONCLUSION OF LAW

That the Respondent did not violate secs. 111.84(1)(a) or
(e), Stats., by imposing the disciplinary
actions referenced in Findings of Facts 9-12.

On the basis of the above and foregoing Findings of Fact and Conclusion of Law, the
Examiner
issues the following

ORDER

That the complaint be and hereby is DISMISSED.

Dated at Madison, Wisconsin, this 27th day of July, 2007.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

Stuart D. Levitan,
Examiner

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Dec. No. 31865-C

STATE OF WISCONSIN

MEMORANDUM ACCOMPANYING FINDINGS
OF FACT,

CONCLUSIONS OF LAW AND
ORDER

POSITIONS OF THE PARTIES

In support of its complaint, the Union asserts and avers as follows:

Pursuant to Commission case law, parties must comply not only with the specific
remedy
in a specific arbitration award, but must also comply with the resolution arbitrators reach
regarding the issues underlying an award when the same issues arise subsequently between
the same parties and no material facts have changed. The respondent in the instant case
has failed to comply both with a broad cease-and-desist order directing the respondent to
secure employees' consent before obtaining confidential medical information as well as
with the underlying principle that employees cannot be required to disclose their medical
conditions.

While the precise issue of requiring employees on sick leave abuse status to disclose
their
medical condition as part of verifying their absence was not before Arbitrator Torosian in
the Local 281arbitration, his rationale and award necessarily hold that the
employer
cannot inquire into the nature of the employee's medical condition.

By issuing his broad language that "the Employer shall cease and desist" from
obtaining
medical information without employee consent "where employees have validated their
absences under Section 13/5/2A and that any inquiry should be limited to determining the
cost of the office visit and doctor's fees employees incur in obtaining a medical certificate,"
arbitrator Torosian clearly intended to enjoin the employer from violating the principle
­
which Torosian found in 13/5/2A ­ that employees must consent to the release of
medical
information to the employer. The contract, Torosian found, assumes that the only
information an employee can be required to provide to validate an absence is a "simple
note from a doctor indicating that the employee was sick and unable to work on the day
in questions." Torosian thus invalidated any policy requiring employees to disclose anything
more than the costs of obtaining the medical certificate.

Accordingly, the discipline of the four employees in the instant matter violated
Torosian's
cease-and-desist order; it is immaterial that the employees work at institutions that have
not interpreted 13/5/2A in the same manner as the facility involved in the Torosian award.

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Dec. No. 31865-C

Further, arbitrators Torosian and Fleischli necessarily decided that sick leave abusers
cannot be required to disclose their medical conditions. The Commission requirements for
issue preclusion ­ that the issue was actually litigated in the prior proceeding and was
necessary to its outcome, and that there are no material factual differences ­ are met
here.

In the Local 48 case, arbitrator Fleischli expressly interpreted 13/5/2A as requiring
employees to indicate only that they suffered from a "medical illness." This interpretation
was clearly intended to invalidate any policy disciplining employees for refusing to provide
any further information other than "medical illness." The Examiner has already properly
described the correct interpretation of these cases in his decision of October 16, 2006.

The material facts in Local 48 were: a unit employee on sick leave abuser status is
absent
from work, presents a medical certificate in a timely manner and is disciplined. It is
undisputed that the four employees who figure in the instant proceeding were unit
employees on sick leave abuser status who were disciplined after presented a medical
certificate in a timely manner.

The Respondent's claims of differences in material facts are without merit and are
unpersuasive. While it may be true that the institutions in the prior cases both did not
require sick leave abusers to reveal the nature of their illnesses, this cannot be considered
material in the sense that if it were not so a different result would have occurred. There is
no indication that either decision would have been different had either institution required
sick leave abusers to disclose their conditions. Even though arbitrator Torosian based his
analysis on the assumption that sick leave abusers were not required to disclose their
conditions, there is no question he would have reached the same result had the practice
been otherwise. His interpretation of 13/5/2A as establishing the principle that the
employer cannot access employee medical records without their uncoerced consent
necessarily requires invalidation of any policy to the contrary. The same holds true for
Arbitrator Fleischli's decision. The coincidence that the two institutions involved were
among an apparent minority of institutions which did not require sick leave abusers to
disclose their illnesses is a non sequitur.

The Respondent's efforts to portray the two institutions are separate employers from
the
agencies involved herein is equally deficient. Statute and the text of the collective
bargaining agreement itself establishes that there is a single employer, the State of
Wisconsin. References to "employing units" and "appointing authority" are also red
herrings.

In support of its position that the complaint should be dismissed, the Respondent
asserts and avers
as follows:

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Dec. No. 31865-C

The precise issue for which complainant seeks issue preclusion in this proceeding was
not
resolved in the Torosian and Fleischli awards. Neither award actually or even remotely
hints that Section 13/5/2A limits in any way the type of medical information the employer
may require. Torosian specifically found that notwithstanding privacy considerations an
employer has the right to insist on "personal medical information" when administering this
provision. This holding clearly rejects complainant's position that "personal medical
information" is limited to the phrase, "medical illness." Complainant even acknowledges
that the precise issue involved herein was not before Torosian, but erroneously contends
that his rationale and award necessarily so hold. Fleischli made no finding that "medical
illness" was all that was required by 13/5/2A because the parties agreed at the local level
that "medical illness" was acceptable. Because the precise issue of whether the phrase
"medical illness" satisfies 13/5/2A was not decided by these awards, issue preclusion does
not apply.

Further, the instant case involves different material facts than were present in the
Torosian
and Fleischli awards. It is uncontradicted that the employing units involved herein ­
Central Wisconsin Colony and the Veterans' Home at King ­ are different than those
before Torosian (the Department of Corrections facility at Redgranite) and Fleischli (the
Department of Health and Family Services' Winnebago Mental Health Institute). Separate
employing units are autonomous and have different practices. The earlier awards clearly
were limited to the facts and practices at those particular institutions, and were not meant
to apply statewide or to employing units other than those before the arbitrator(s).

The practices at the two employing units involved in the instant case differ form those
involved in the earlier awards. Indeed, the requirement for medical specificity for medical
verifications vary at the various employing units in state service. These differing practices
is consistent with language in the master collective bargaining agreement which identifies
sick leave matters as appropriate for discussion and implementation at the local level. The
practice at WMHI was the exception to the divisional policy at DHFS requiring
information about a specific medical condition, and the practice at CWC and King is
different than it was at WMHI and RGCI. Different practices at different employing units
limit the applicability of arbitral awards.

Further, Torosian and Fleischli both upheld the employer's right under 13/5/2A to
require
medical information when it was necessary to administer that provision, which allows for
greater scrutiny of an employee designated as a sick leave abuser, including obtaining
personal medical information to medically validate the absence. Sick leave abusers had
already shown untrustworthy conduct which prompted great suspicion of that employee's
absences; supervisors needed information to determine if these employees were in fact so

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Dec. No. 31865-C

sick as to be unable to come to work, which required specificity more than merely
"medical illness." Moreover, the sick leave abuser at King signed a document authorizing
the health care provider to release medical information, a material fact not present in the
earlier awards.

The Complainant also disregards three other arbitration awards which are binding in
this
proceeding, all of which validate the employer's requirement for more information that a
mere statement as to "medical illness."

Complainant's position advocated herein was not only sidestepped and rejected but it
is
inconsistent with its advocacy in the Torosian and Fleischli arbitrations. Complainant also
totally misreads the Fleischli award, which did not, contrary to the complainant's
contention, restrict an employer to only "medical illness." Further, Complainant's failure
to act until three years after the contractual change in 2000 undermines its position.

Applicable Commission caselaw sets a very rigid standard and heavy burden a party
advocating the applicability of a prior arbitral award must meet in order for an award to
be binding in a subsequent proceeding. Unless the exact issue has been resolved and the
material facts are identical, Respondent is not bound by the Torosian and Fleischli awards.

Here, there is absolutely no proof that the precise issue was decided in those awards.
In
any event, the material facts are different. The only award that is binding is an earlier
award by arbitrator Ver Ploeg which established that the employer at CWC can demand
a statement of symptoms and diagnosis. Commission case law requires a finding that the
Torosian and Fleischli awards are not binding, the Ver Ploeg award is, and that the
complaint must be dismissed on its merits.

In response, the Complainant further asserts and avers as follows:

Respondent errs when it contends that the Torosian case involved materially different
facts
because the employees were not on sick leave abuser status. In fact, because the Union
did not challenge the employer's treatment of the employees as sick leave abusers do to
concerns about a "blue flu" job action, the employees in that case were indeed deemed to
have been "on the letter," a material fact identical to those employees at issue here.

Respondent errs by not recognizing that, while Torosian did not incorporate HIPPA
into
the collective bargaining agreement, he did acknowledge that the contractual language
regarding privacy did incorporate several HIPPA concepts, including banning the release
of medical records without consent.

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Dec. No. 31865-C

Torosian's rationale necessarily extended to the right to withhold information
regarding the
nature of the employee's illness. Torosian's assumption that the only information needed
to validate the illness was a "simple note from a doctor indicating that the employee was
sick and unable to work on the day in question" was based upon the practice at the
institution, but was clearly critical to his "cease and desist" order. Torosian impliedly found
that the employer is not entitled to anything more than the "simple note" to validate an
absence.

Respondent errs further in its mischaracterization of the Fleischli award, especially its
absurd assertion that the arbitrator did not interpret 13/5/2A. Contrary to Respondent, the
coincidental fact that the institution in question did not require sick leave abusers to disclose
their illness does not render any statement any less of a contract interpretation or dicta.

Section 13/5/2A is not ambiguous, and requires employees designated as sick leave
abusers to provide a medical certificate which "verifies that the employee was not abusing
sick leave or is physically fit to report to work." It does not specify the contents of the
certificate or require the employee to provide any information regarding the nature of the
illness. The Respondent errs in maintaining it is for the Examiner to decide whether the
employers herein have a need to know the medical reasons; such a determination is
beyond the Examiner's authority.

Nothing in Respondent's brief requires any change in Examiner's previous finding
that the
"employer cannot go beyond the magic words attesting to the nature of the illness."

The Respondent errs further in maintaining that the Torosian and Fleischli awards
apply just
to the two institutions involved in those decisions. Respondent does not even address
Complainant's rebuttal based on the statutory definition of a "single employer."
Respondent further distorts the record by implying the practices at the two institutions were
negotiated pursuant to the last sentence of 13/5/2A.

DISCUSSION

Section 111.84(1)(a), Stats., makes it an unfair labor practice for the State of
Wisconsin to
interfere with, restrain or coerce employees in the exercise of their statutory rights to form,
join or assist
labor organizations, bargain collectively, and to engage in lawful concerted activities for the
purposes of
collective bargaining or other mutual aid, or to refrain from any or all activities. Section
111.84(1)(e), Stats.,
provides in pertinent part that the State commits an unfair labor practice if it does not "accept
the terms of
an arbitration award, where previously the parties have agreed to accept such award as final
and binding
upon them."

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Dec. No. 31865-C

Although the Complainant alleged violations of both Sections (1)(a) and (e), its
evidence and
arguments focused exclusively on (1)(e). As the parties both recognize, the leading
Commission case in the
jurisprudence of Section 111.84(1)(e) is State of Wisconsin (Department of Corrections),
a/k/a
"Luder," Dec. No. 31240-B (5/2006), in which the Commission held:

It is clear from the language of this provision that its application is dependent upon
whether
the parties themselves have "agreed" to accept an award as "final and binding."

Historically, the Commission has viewed the Section (1)(e) requirement, and its
municipal
and private sector analogs, as taking two forms. First, an employer must comply with the
specific remedy set forth in a specific arbitration award. See, e.g., State of Wisconsin,
Dec. No. 14823-C (WERC, 10/77) (holding that the State violated the law by granting the
relief only to the specific grievants when the award by its terms covered all similarly
situated employees). Second, taking guidance from the concepts of claim preclusion (res
judicata) and issue preclusion (collateral estoppel), an employer must comply with the
resolution arbitrators have reached regarding the issues underlying an arbitration award,
when the same issues arise subsequently between the same parties and no material facts
have changed. See, e.g., Wisconsin public Service Corporation, Dec. No. 11954-D
(WERC, 5/74). It is only the second type of Section (1)(e) violation, i.e., a violation
resting upon preclusion principles, that precipitates an inquiry into the similarity of "material
facts" between the first and the subsequent grievances.

Under the preclusion prong of the Section (1)(e) analysis, as set forth in Wisconsin
Public Service Corporation, the award would be binding whether or not it involved
in the same grievant. Without dissecting the differences between claim preclusion and issue
preclusion, we note that issue preclusion is generally the more apposite concept when
considering the effect of an arbitration award in a subsequent grievance.(1) For issue preclusion purposes
(and thus for the second type of Section (1)(e) violation), it does not
matter whether the same grievant is involved in the subsequent arbitration. What matters, as
the
Commission held in its seminal decision in Wisconsin Public Service Corporation,
Supra, is
whether the precise issue has been resolved and subsequent circumstances
have not called the
resolution into question.

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Dec. No. 31865-C

This extremely close question ultimately must be answered on the basis of the burden
of
proof. As always in a complaint proceeding, the complaining party (here, the Union) bears
the burden of establishing the requisite elements of the claims by a clear and satisfactory
preponderance of the evidence. See Secs. 111.07(3) and 111.84(4), Stats. Similarly,
the
party asserting issue preclusion bears a relatively heavy burden to show that a particular
issue was actually decided in a previous case. Waupaca County, Dec. No. 30822
(WERC, 4/04), and cases cited therein. As the Commission noted in Waupaca
County, the jurisprudence regarding issue preclusion cautions that the doctrine is
"equitable" and should not be applied rigidly to foreclose a party from an opportunity to
litigate a claim. Therefore it is up to the Union to convince us that the Ver Ploeg award
actually determined that the State could not prohibit Luder from smoking (unless material
circumstances changed) and, by the same token, that she did not rule for Luder on some
other more limited ground.

Under Luder, the "first question" is "what issues were actually resolved and necessary
to the
outcome." Id., at 9. Therefore, to prevail in its complaint, the union must show by a clear
and satisfactory
preponderance of the evidence that either the Local 281 or the Local 48 award
resolved the precise
issue involved in the CWC and DVA grievances, and that there was no
significant difference in the material
facts.

I turn, therefore, to a close review of those earlier awards, to determine whether or
not they
preclude the employer from requiring employees who are considered to be sick leave abusers
to submit
medical certificates with information more specific that simply "medical illness."

I find they do not, and accordingly have dismissed the complaint. In so doing, of
course, I decidedly
do not interpret and apply the collective bargaining agreement to the
underlying grievances, nor offer any
opinion on the merits of the underlying grievances. The issue before me was not whether the
employer
violated the collective bargaining agreement by imposing any or all of the underlying
disciplinary actions,
but rather whether it was an unfair labor practice for the employer to do so.

The Torosian Award

The parties ­ Wisconsin State Employees Union, Local 281 and the State of
Wisconsin,
Department of Corrections -- stipulated to one issue, viz., "Did the Employer violate the
collective
bargaining agreement when it did not pay certain charges on the grievants' medical bills?"
The union also
proposed a second issue, viz., "Did the Employer violate the collective bargaining agreement
when it asked
the grievants' health care providers to provide the grievants' protected health information
without first
securing the consent of the grievants?" The arbitrator disagreed with the employer's position
in opposition
to a second issue, stating, "(t)he grievance giving rise to the instant arbitration raises the
privacy issue."

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Dec. No. 31865-C

The award indicates that the "Pertinent Contract Provisions" are the sections of
13/5/2A, the same
provisions at the heart of the instant controversy.

The grievance involved six DOC employees at the Redgranite Correctional Institution
who called
in sick during a four-day period during which the state, concerned that its employees would
engage in job
actions including the "blue flu," had required medical certificates to verify their inability to
work. This
directive was done pursuant to Section 13/5/2A of the master agreement. For the
purposes of the
arbitration, the union did not challenge the legitimacy of the employer's decision to require
such certification,
meaning the employees were thus tantamount to sick leave abusers.

The grievants and/or their medical provider, Berlin Memorial Hospital, provided bills
showing an
"ER General" fee and "Professional Fees ER," along with other charges for lab work, x-rays
and other
tests. Human Resources personnel at Redgranite Correctional Institution reviewed the bills
and contacted
the billing department of the hospital to determine the exact nature of the charges, including
disclosure of
the actual test or service provided. The RGCI human resources personnel did not contact the
grievants to
inform them of the investigation of their bills or to ask for a release to obtain the information
concerning their
tests or treatments.

The employer ultimately did not question the legitimacy of the grievants' sick leave
usage, but did
challenge the amount billed back to it, contending that certain costs should properly be borne
by the
grievants' insurance carrier. The union thereafter filed a grievance alleging that the employer
violated
sections 13/5/2A and 9/5/1 of the collective bargaining agreement by investigating the
specifics of the bills.

The aspect of the Torosian Award relating to the allocation of costs is not pertinent to
the matter
before me. Arbitrator Torosian's consideration of 13/5/2A is. Because of its importance to
the instant
controversy, I quote it in its entirety:

Issue 2

A new paragraph was added to Section 13/5/2A in the 2002-2003 collective
bargaining
agreement to protect employee privacy with respect to medical information. It requires the
parties to "make a good faith effort to maintain the confidentiality of personal medical
information which is received by or disclosed to the Employer in the course of
administering this section." (2)

The Union argues that this language incorporates existing laws
protecting the privacy of employees
including the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). The
Employer
claims otherwise.

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Dec. No. 31865-C

Whether the State as an Employer is covered, in full or in part, by HIPAA is not an
issue
that needs to be decided by this Arbitrator. In the opinion of the Arbitrator, a good faith
effort was not made in this case as required by the above-noted provision.

The Employer argues that under the contract, it has a right to request and receive
medical
information in the course of administering Section 13/5/2A. Assuming this to be true, the
Employer in this case did not adequately explain why it decided to investigate the grievants'
bills "in the course of administering this section." Significantly, Human Resources Director
Souzek testified that she had already received medical certificates from the grievants and
concluded that they were indeed sick on the days in question prior to
investigating their
medical bills. Souzek testified as follows:

Q: And is it correct that you and your office reached a conclusion
that the employees
were, in fact, sick on those days in question?

A: That's correct.

Q: Now, after you made that determination, did this institution then
receive bills from
the medical providers who provided the certificates on behalf of these employees?

A: The bills either came from the employee themselves or the
institution wherever they
received the services. They came from both places.

Souzek also testified that for sick leave abusers under Section 13/5/2A, all
that is
required, as far as validation, is a simple note from a doctor indicating that the
employee was sick and unable to work on the day in question. She cited Employer
Exhibit 1 as an example. Given Souzek's testimony, one wonders why the calls about the
bill were made. Souzek testified that it was "Because of ­ DOC's practice and RCGI's
practice is to pay the cost of the certificate and not the diagnosis or treatment. So it's to
decipher which one was which. Sometimes you can tell. But mostly you can't." Here,
however, there was no need for the Employer to contact the grievants' medical provider
because the medical bills submitted were itemized and specifically listed charges for "E R
general" and "professional fees E R." There was nothing to decipher; the charges were
apparent. Since the grievants' absences were validated and accepted and the "cost" of the
medical certificates was clearly identified on the grievants' bills, there was no need for the
Employer to seek additional information much less the specifics of the charges identified
as lab work, x-rays, etc. If for some reason clarification was needed, Souzek should have
limited her inquiry and simply asked for the charges for the office visit and doctor's fee.
(emphasis added).

Page 15

Dec. No. 31865-C

The Arbitrator interprets Section 13/5/2A as an acknowledgement by the parties that
an
employee's medical information is a private matter and that said information is subject only
to the Employer's right to administer said section. In the final analysis, the Employer
offered no evidence to establish that its inquiries about the grievants' medical bills were
necessary "in the course of administering" section 13/5/2A. The Employer, therefore, did
not have a right to such information under Section 13/5/2A, and by obtaining same, without
the grievants' permission, the Employer violated the grievants' privacy rights.

Based on this analysis, Arbitrator Torosian issued the following Award:

1. That the Employer did not violate the collective bargaining
agreement by not
paying charges other than for an office visit and doctor's fee incurred by the
grievants in obtaining a medical certificate.

2. That the Employer violated Section 13/5/2A of the collective
bargaining agreement
by not securing the grievants' consent before obtaining medical information
regarding their medical bills; that the Employer shall cease and desist from doing
so in cases where employees have validated their absences under Section 13/5/2A
and that any inquiry should be limited to determining the cost of the office visit and
doctor's fee employees incur in obtaining a medical certificate.

Because the employer was satisfied, as far as validation of a medically required
absence, with a
"simple note from a doctor indicating that the employee was sick and unable to work on the
day in
question," Torosian never addressed ­ much less answered -- the question of what
information the
employer could require in administering Section 13/5/2A. The Union
implicitly acknowledges as much,
stating in its brief that, "(w)hile this precise issue was not before him, his rationale and
award necessarily
so hold." This, of course, is not the standard which Luder requires. Indeed, Luder holds
directly to the
contrary ­ that the precise issue must have been before the arbitrator
for there to be issue preclusion.

As quoted above, arbitrator Torosian interpreted Section 13/5/2A as an
acknowledgement by the
parties that an employee's medical information is a private matter, but that
said information is subject to
the Employer's right to administer said section. He did not, however, state how far the
Employer's "right
to administer said section" extends where the employer in question had not previously
determined that sick
leave verification would be accomplished by a "simple note" stating the employee had an
unspecified
"medical illness."

Thus, even assuming arguendo that Torosian's broad
cease-and-desist order ­ that the employer not
seek information about an employee's medical bill without first securing the employee's
consent where
employees have validated their absences under Section 13/5/2A ­ applies to the
employer in the matter
before me, it is clear the order does not apply to the

Page 16

Dec. No. 31865-C

instant controversy because it applies only where employees have validated
their absences under
Section 13/5/2A.

In the employment settings before me, of course, the employer has not
determined that a "simple
note" is sufficient for those on the sick leave letter, but rather has insisted on a more detailed
explanation
for the employee's absence. Accordingly, even though the employees in the matter before
arbitrator
Torosian were indeed sick leave abusers (contrary to the state's argument before me), the
Torosian Award
cannot serve to preclude consideration of this issue because it fails to satisfy both strands of
the Luder
standards ­ Torosian did not resolve the precise issue involved in the subsequent
grievances, and there is
a significant discrepancy of material fact among the several cases. Accordingly, I have held
that the
employer did not violate the Torosian award in its discipline of the four employees
referenced in Findings
of Fact 9 through 12.

The Fleischli Award

This arbitration involved a Resident Care Technician at the Winnebago Mental Health
Institute, a
facility operated by the State of Wisconsin Department of Health and Family Services. In
May, 2002, the
employer found the grievant, DC, to be a "sick leave abuser" and placed her "on the letter,"
setting out the
requirements she had to meet when submitting verification for her use of sick leave. In
material part, the
letter provided:

The medical slip must be given to your supervisor on the day you return to duty.
Denial of
sick leave benefits and disciplinary action may be taken if:

1. You do not see the physician on the first day of your
absence;

2. You do not obtain the medical slip or other appropriate
verification;

3. The medical slip is incomplete. To be complete, the
medical slip must
include:

a. Appropriate signature

b. Date and time seen

c. Length of absence required

d. Statement that the illness did preclude work for each day
of
absence and the reasons why

4. The medical slip is not returned when you returned (sic)
to work.

The parties agreed that under 3.d., the medical provider did not need to provide a
detailed
diagnosis of the illness. As the Union explained in its brief:

Page 17

Dec. No. 31865-C

There was no need for the clinic to identify the nature of DC's illness because the
Employer has made it clear to the Union that ­ although it will accept a slip with
a detailed
diagnosis ­ a slip that indicates that the reason for the absence was a medical illness is
sufficient to meet the Employer's medical verification requirements. Human Resources
Director Frances Dujon-Reynolds testified: (emphasis added).

Q: (By the OSER representative) I'd like you to look at what
has been entered as
Joint No. 8 and tell me if this is the letter that you've referred to?

A: Yes, this is the letter that we use to require medical verification.

Q: I'd like to have you look at the section in the letter that talks
specifically about
what needs to be in the medical verification. There is a listing there that there needs
to be something from the doctor which indicates the person is not capable of
working?

A: Correct.

Q: Have you all talked about that particular criteria at labor
management meetings?

A: Yes, we have.

Q: What has been the gist of that conversation?

A: Basically that we would accept the statement on any kind of
medical slip that ­ the
reason for the absence. If it just stated medical illness, we would accept that as
adequate verification. (emphasis added)

Q: So you did not necessarily need a specific diagnosis?

A: No.

As Arbitrator Fleischli wrote, "the medical provider need indicate only that the
Grievant's absence,
and where appropriate her continued absence, is medically necessary. A medical slip that sets
out the date
of absence and provides as a reason, 'medical illness,' is deemed sufficient by the Employer.
Contrary to
the union, Fleischli did not "h(o)ld that this practice was required by Article
13/5/2A;" instead, he accepted
as a factual predicate that this practice was just that ­ a practice instituted by the
employer. The union also
errs in calling this fact "coincidental," when it is actually central to the legal issue in the
instant proceeding.

Page 18

Dec. No. 31865-C

Between May, 2002 and January, 2003, the grievant received a verbal reprimand, a
written
reprimand and a one-day suspension, all of which she accepted without grieving.

In February 2003, the grievant submitted a medical slip that did not fully comply with
the above-noted requirements, in that it was submitted in an untimely manner and stated
only, "Patient was seen in our
office today." Determining that the slip failed to state the length of the illness, a reason for
grievant's
absence or that the illness prevented her from reporting to work, and was also untimely, the
employer
issued a letter in lieu of a three-day suspension, which discipline the grievant timely grieved.

Less than two weeks later, the grievant submitted a medical slip from her chiropractor
which
contained no statement as to the reason for her absence from work or the length of her
malady. Also, like
23 of the 29 slips she submitted during the period May 2002 to March 2004, this slip did not
indicate the
time the grievant saw the health care provider. If the lack of a time seen was the only defect
in a submitted
slip, the employer accepted the verification; however, if other data was missing, the
employer documented
this failure as well. The employer did not impose any discipline for this incident.

On April 10 and April 11-14, grievant was again absent from work. Upon her return,
she submitted
two slips covering these absences. The April 10 form failed to state a reason for her absence,
the time or
length of her office visit with the doctor, or indicate that her medical condition prevented her
attendance
at work. The April 11-14 verification, on a different form but signed by the same physician,
stated:

D C is a patient under my care. Due to medical problems, it is necessary for her to
be off work beginning 4/11/03 through 4/14/03

The employer accepted this medical slip as being in full compliance with the
above-noted
requirements. It did not accept the slip for the April 10 absence, and issued a letter in lieu of
a five-day
suspension, which DC timely grieved. The employer did not impose any discipline for her
absence of April
11-14, when she suffered a miscarriage.

DC submitted three additional slips in 2003 which did not meet the requirements of
the May 2002
letter. In June, the note failed to state the length of the absence. In August, the note failed to
state the reason
for the absence or that her condition prevented her from working. In October, the note failed
to indicate
the reason for her absence, length of the absence, or that her condition prevented her from
working. The
employer did not impose any discipline for these inadequacies, or counsel DC that in the
future it would
strictly enforce the requirements of the May 2002 letter.

On March 7, 2004, DC submitted a slip on which a physician had checked the box
stating, "Patient
may return to work with no limitations on 3/7/04." On March 16, the employer terminated
DC for
submitting a slip that failed to conform to the May 2002 letter, stating in its termination
letter:

Page 19

Dec. No. 31865-C

This is official notification of termination of employment for violation of Department
of
Health and Family Services Work Rule No. 1, which states:

All employees of the Department are prohibited from committing any of the following
acts:

1. Disobedience, insubordination, inattentiveness, negligence or
refusal to carry out
written or verbal assignments, directions, or instructions.

. . .

14. Failure to give proper notice when unable to report for or
continue duty as
scheduled, tardiness, excessive absenteeism, or abuse of sick leave privileges.

This action is being taken based on incident of March 6, 2004, when you failed to
provide
adequate medical verification for your absence as required. The medical documentation
that you submitted did not have a statement that you were unable to work and the reason
why. The medical verification letter you were given requires that any medical slip you
submit have this complete documentation in order for the absence to be authorized.

DC grieved the three disciplines, asserting that the employer lacked just cause to
impose the letter
in lieu of a three-day suspension, the letter in lieu of a five-day suspension, and the
termination.

Arbitrator Fleischli elaborated on the factual and contractual context in which the
grievances arose,
as follows:

The submission of complete medial verification is dependent on the participation and
cooperation of others outside the employ of the Winnebago Mental Health Institute. The
medical provider must submit the information requested and attest to its accuracy. In the
end, the Employer through placement of the employee "on the letter" requires the
employee to review the medical slip she intends to submit for completeness. It is her
responsibility. She seeks out medical attention, and she must provide evidence to the
Employer that she is sick on the day of absence and that the illness precluded her reporting
to work on the day of absence.

For its part, the Employer must consistently and fairly apply the technical
requirements set
out in the "letter." Otherwise, an employee subject to the "letter," such as the Grievant,
may believe that general compliance with the intent of the rule may be sufficient. The
inconsistent application of the rule,

Page 20

Dec. No. 31865-C

through imposition of discipline in some instances and overlooking other infractions
of the
"letter" requirements may lead an employee who is subject to the "letter" to form a false
sense of security that certain of the requirements need not be met.

On the other hand, the employee who is subject to the "letter" need not provide the
Employer with detailed information, often of a very personal nature, to establish the
medical basis for an absence. The employee's medical provider need only assure the
Employer that absence from work was medically required. It provides the Employer with
its needed assurance that the employee's absence was medically necessary. It protects the
employee's privacy in that the details of a medical diagnosis are not revealed to the
Employer. An employee may view the necessity of including the magic words, "medical
illness" on a medical slip as formalistic. However, it is through the use of that phrase that
a physician certifies to the Employer that an employee's absence was medically justified.
An employee may choose to refrain from giving the Employer detailed information about
the illness that prevented her from reporting to work. This is a contractually protected
option open to her. However, given the limited information provided by the medical
provider, what may seem to the employee as a formalistic requirement represents the
central reason for the imposition of the "letter" requirements, to insure that the employee's
absence on a particular day was medically required. The Employer clearly has the right to
insist that the medical slip submitted contain the magic words.

With these principles in mind, the arbitrator addressed the justification for the three
disciplinary
actions imposed by the Employer. Regarding the February, 2003 three-day suspension, the
arbitrator found
that the grievant submitted her slip in a timely manner, but the slip was deficient because it
did not state her
absence was medically required, or the length or reason for her absence. He therefore
denied the
grievance and sustained the disciplinary action. Regarding the April, 2003 five-day
suspension, the
arbitrator found that the grievant's absence was not accounted for by a complete medical slip,
and so he
again denied the grievance and sustained the discipline. Regarding the March, 2004
discharge, the
arbitrator found that the employer had not been uniform in its application of the requirements
and had given
the grievant inadequate notice as to its insistence on full compliance with the "letter"
requirements.
Accordingly, arbitrator Fleischli found that the employer did not have just cause to terminate
the grievant,
and ordered her to be reinstated and made whole.

The critical question for the instant controversy, though, is not who
won the Fleischli Award, but
why. And as this summary of the award indicates, the mere fact that the
grievance was sustained, in part,
does not necessarily provide sufficient legal support for the union in the matter before me.

As noted above, Arbitrator Fleischli explicitly found that it was the
employer, and not the
provisions of 13/5/2A, which established that "the medical provider need indicate only that
the Grievant's
absence, and where appropriate her continued absence, is medically necessary.

Page 21

Dec. No. 31865-C

A medical slip that sets out the date of absence and provides as a reason,
'medical illness,' is deemed
sufficient by the Employer." (emphasis added). The Union is incorrect
when it asserts that Fleischli "held
that this practice was required by Article 13/5/2A." Instead, Fleischli held that a simple
statement of
"medical illness" was all that the employer required.

The employer in the matter before me has a practice of requiring more, insisting
instead on a
statement of the employee's illness and why it prevented the employee from reporting to
work. Thus,
again, the presence of such a significant discrepancy on a material matter of fact, coupled
with the fact that
the Fleischli Award did not resolve the precise issue involved in the DVA and CWC
disciplines, prevent
the union from claiming issue preclusion under Luder.

I have no idea, and express no opinion, whether the employer's practice of requiring
such medical
information is allowed under the collective bargaining agreement or HIPPA, but I find that
doing so is not
prohibited under the precedent of the Torosian and/or Fleischli awards.

As the Union correctly notes, there are statements contained on page 3 of my Order
Denying
Motion to Decline Jurisdiction that support its position. That Order, however, was issued
prior to hearing,
and thus was without benefit of testimony and documentary evidence necessary to fully
understand the legal
and factual issues before me. Moreover, there are statements therein which implicitly go to
the merits of
the underlying grievances, which are not before me. Accordingly, the parties should
consider the
penultimate paragraph on page 3 of that Order as dicta, without binding legal force or
applicability.

Having dismissed the complaint, I decline to address the employer's further argument
that this case
and the Torosian and Fleischli Awards involved different employers, other than to note
Findings of Fact
2 and 3, above.

Dated at Madison, Wisconsin, this 27th day of July, 2007.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

Stuart D.
Levitan, Examiner

gjc

31865-C

1 Claim preclusion
generally applies to situations where the same temporal events (or "transaction") give
rise to more than one cause of action. Claim preclusion is related to the "merger doctrine,"
requiring that
all claims arising out of a single transaction be combined; accordingly, such claims will be
precluded
whether or not they were actually litigated. See State of Wisconsin (DER) (Methu), Dec. No.
30808-A (WERC, 1/06) at 8-9. Issue preclusion, on the other hand, applies to subsequent
events or transactions
that implicate issues already settled in previous litigation. Unlike claim preclusion, issue
preclusion does not
require the same parties, but does require that the issue actually have been litigated in the
prior proceeding
and have been necessary to the outcome. See discussion in Waupaca County, Dec. No.
30882
(WERC, 4/04).